UC-NRLF 


Argument  on  the 

Anti-Injunction  Bill 

BEFORE  HON,  WM.  D,  STEPHENS 

GOVERNOR  OF  CALIFORNIA 

BY 

MAX  J.  KUHL,  ESQ, 

ATTORNEY  FOR 
SAN  FI^ANCISCO  CHAMBER  OF  COMMERCE 


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ARGUMENT 

ON  THE 

Anti- Injunction  Bill 

(S.  B.  1035) 
BEFORE 

HON.  WM.  D.  STEPHENS 

Gooernor  of  California 

Monday,  May  21,  1917 


BY 

MAX  J.  KUHL,  ESQ. 

Attorney  for 

SAN  FRANCISCO  CHAMBER  OF  COMMERCE 


Foreword 


rriHE  San  Francisco  Chamber  of  Commerce 
X  believes  that  you  will  be  interested  in 
reading  this  argument  in  opposition  to  the 
Anti-Injunction  Bill,  which  passed  both  houses 
of  the  California  Legislature  this  Spring,  but 
was  finally  vetoed  by  the  Governor,  This  bill  is 
in  general  similar  to  the  so-called  ^^ Model  Anti- 
Injunction  BilV^  introduced  by  the  American 
Federation  of  Labor  into  the  legislatures  of 
eighteen  states  during  the  past  year. 

The  subject  matter  of  this  bill  is  attracting 
wide  attention  from  thoughtful  business  men. 

The  argument  herewith  presented  was  the 
final  argument  made  by  the  attorney  for  the 
San  Francisco  Chamber  of  Commerce  at  the 
public  hearing  before  Governor  William  D, 
Stephens,  In  sending  this  argument  to  you 
this  Chamber  of  Commerce  is  following  a 
fixed  policy  of  disseminating  information  on 
subjects  of  importance  to  the  industrial  com- 
munity. 

San  Francisco  Chamber  of  Commerce, 

Frederick  J.  Koster, 

President, 


381265 


The  Argument 

AT  the  outset  I  deem  it  proper  for  your  in- 
L  formation  to  state  that  in  appearing  before  you 
I  do  so  not  merely  in  my  personal  capacity,  but 
as  the  authorized  representative  of  a  number  of 
important  business  organizations  throughout  this 
State  who  are  vitally  interested  in  opposing  your 
final  approval  of  this  bill.  I  hold  written  authori- 
zations from  the  following  organizations  and 
others : 

San  Francisco  Chamber  of  Commerce, 
Merchants'  &  Manufacturers'  Association, 

Los  Angeles. 
Salinas  Chamber  of  Commerce. 
Marysville  Chamber  of  Commerce. 
Napa  Chamber  of  Commerce. 
Associated  Jobbers  of  Los  Angeles. 
Chamber  of  Mines  and  Oil,  Los  Angeles. 
San  Diego  Chamber  of  Commerce. 
Watsonville  Merchants'  Association. 
Manufacturers'  Association  of  San  Diego. 
Pasadena  Board  of  Trade. 
Redding  Chamber  of  Commerce. 
Los  Angeles  Chamber  of  Commerce.    ■ 
Employers' Association  of  Alameda  and  Contra 

Costa  Counties,  Oakland. 
Merchants',  Manufacturers'  &  Employers' 

Association,  Stockton. 
Chamber  of  Commerce,  Fresno, 


Page  I 


Yo,ur  Kxecmency  bo-s  heard  h  great  deal  of  gen- 
eral talk  to-day  cOiicerning*  the  wrongs  suffered 
by  organized  labor,  the  abuses  of  courts  in  dealing 
with  strike  cases,  and  the  industrial  injustice 
which  it  is  claimed  has  been  for  so  long  inflicted 
upon  the  laboring  man.  You  have  heard  a  rather 
interesting  academic  discussion  concerning  the 
edicts  of  the  Roman  tribunes,  and  how  our  Ameri- 
can courts,  without  the  sanction  of  authority  or 
precedent  have  superimposed  upon  these  Roman 
edicts  a  power  which  nowhere  else  has  ever  existed. 
It  may  be  pertinent  to  suggest  to  you  that  at  this 
time  we  are  considering  a  concrete  bit  of  legisla- 
tion, namely:  Senate  Bill  1035,  known  as  the 
Anti-Injunction  bill.  It  is  of  far  greater  impor- 
tance that  we  deal  with  this  particular  bill,  with 
its  peculiar  elements  of  viciousness  and  unconsti- 
tutionahty,  rather  than  enter  upon  a  wide  dis- 
cussion of  generalities.  With  your  permission, 
therefore,  I  shall  take  the  present  bill  and  by  an 
analysis  of  its  provisions  attempt  to  call  your 
attention  to  its  objectionable  and  unconstitu- 
tional features. 

The  title  briefly  describes  the  bill  as  "An  Act 
to  make  lawful  certain  agreements  between  em- 
ployees of  laborers,  to  define  the  cases  in  which 
injunctions  may  and  may  not  issue,  to  prescribe 
the  procedure  in  trials  for  contempt,  to  secure  the 
right  of  jury  trial  in  all  such  cases'^  etc. 

In  Section  1,  is  a  general  declaration  that  it  shall 
not  be  unlawful  for  working  men  and  women  to 
organize  themselves  into  or  carry  on  labor  unions 
for  the  purpose  of  lessening  the  hours  of  labor,  or 
increasing  the  wages,  or  bettering  the  conditions 

Page  2 


of  the  members  of  such  organizations;  or  carrying 
out  their  legitimate  purposes  as  freely  as  they 
could  do  if  acting  singly.  With  the  provisions  of 
this  section  we  have  no  quarrel. 


Our  ^eo^Je  in  accord  with  lahor  unions 

when  those  organizations  are 

legitimately  conducted 

IN  order  to  focus  your  attention  upon  the  objec- 
tionable features  of  the  bill,  let  me  say  right 
here  that  in  so  far  as  possible,  I  shall  pass  by  all 
the  provisions  of  this  statute  which  in  our  opinion 
are  neither  objectionable  nor  unconstitutional. 
Not  only  have  we  no  quarrel  with  the  provisions 
of  the  first  section  of  this  act,  but  I  am  pleased  to 
advise  you  that  the  people  whom  I  represent  are 
heartily  in  accord  with  the  principles  of  lahor  union 
organizations  when  those  organizations  are  legiti- 
mately conducted.  We  recognize  the  right  of  all 
human  beings  to  organize,  and  by  a  lawful  exer- 
cise of  the  powers  of  their  organization  to  better 
the  conditions  of  their  members.  We  recognize 
the  fact  that  labor  through  its  organizations  has 
greatly  improved  the  condition  of  the  individual 
members  of  labor  unions.  With  their  legitimate 
functions,  or  the  lawful  exercise  of  their  great 
power  we  have  no  quarrel.  It  is  only  when  organ- 
ized lahor  J  feeling  too  keenly  its  own  strength,  exerts 
its  power  for  an  illegitimate  purpose  and  hrutally 
hrandishes  the  weapons  of  violence  and  coercion  over 
the  heads  of  legitimate  business  industry  and  enter- 
prise that  we  call  halt.  In  a  government  like  ours, 
in  which  all  men  are  presumed  to  be  free  and  equal 
and  to  stand  upon  a  common  footing,  it  is  just  as 

Pages 


dangerous  for  organized  labor  to  set  up  within  the 
government  another  government  composed  solely 
of  its  own  membership  as  it  would  be  for  capital, 
through  the  tremendous  power  of  its  ag^egate 
wealth,  to  exploit  those  whose  bread  is  dependent 
upon  their  labor.  No  free  government,  whether 
republican  or  democratic  in  form,  can  long  continue 
to  exist,  if  within  its  confines  is  permitted  to  grow 
up  another  extra-official  government  wiekjing  a 
power  almost  as  tremendous  as  that  exerted  by- 
government  itself,  and  not  subject  to  normal  or 
legal  limitations.  So  I  say,  with  the  provisions  of 
Section  1  of  this  Act  we  have  no  quarrel,  and  I 
shall,  therefore,  pass  the  section  without  further 
comment. 

Coming  now  to  the  second  section  of  the  Act, 
we  find  this  provision: 

'^No  restraining  order  or  injunction  shall  be  granted 
by  any  court  of  this  state,  or  any  judge  or  judges  there- 
of, in  any  case  between  an  employer  and  employees, 
or  between  employers  and  employees,  or  between 
employees,  or  between  persons  employed  and  persons 
seeking  employment,  involving,  or  growing  out  of,  a 
dispute  concerning  terms  or  conditions  of  employ- 
ment, unless  necessary  to  prevent  irreparable  injury 
to  property,  or  to  a  property  right  of  the  party  mak- 
ing the  application,  for  which  injury  there  is  no  ade- 
quate remedy  at  law,  and  such  property  or  property 
rights  must  be  described  with  particularity  in  the 
application,  which  must  be  in  writing  and  sworn  to 
by  the  applicant  or  by  his  agent  or  attorney." 

On  its  face  this  language  apparently  is  of  no 
serious  moment.  It  seems  merely  declaratory  of 
the  law  as  it  now  exists  and  has  existed  in  this 
State  for  many  years.  The  principle  that  injunc- 
tions shall  not  issue  except  to  restrain  irreparable 

Page  4 


injury  to  property  is  as  old  as  courts  of  equity 
themselves.  Indeed  the  reason  for  the  establish- 
ment of  the  legal  principle  upon  which  injunctions 
are  issued  arose  in  the  chancery  practice  of  Eng- 
land's equity  courts  mainly  out  of  the  necessity 
of  stopping  irreparable  injury  to  property  pend- 
ing the  outcome  of  litigation. 

While  upon  its  face  this  section  appears  harm- 
less, in  another  portion  of  this  bill  is  neatly  con- 
cealed a  declaration  of  legal  principles,  which  read 
with  Section  2  makes  the  act  not  so  harmless  as 
its  first  appearance  would  indicate.  It  changes 
the  provision  of  Section  2  from  a  mere  declaratory 
rule  of  law  to  a  legal  principle  that  in  my  judg- 
ment is  not  only  unconstitutional  but  vicious  and 
dangerous  from  every  viewpoint, — indeed,  to  the 
very  men  who  are  urging  your  approval  of  this 
bill.  I  allude  to  a  short  sentence  that  appears  as 
the  introductory  part  of  Section  8  of  the  bill, 
reading:  ^^The  labor  of  a  human  being  is  not  a 
commodity  or  article  of  commerce.^'  Retain  for  the 
moment  this  sentence  in  your  mind,  while  I  turn 
back  to  Section  2  and  read  again  those  lines  in  the 
section  containing  the  words  "unless  necessary  to 
prevent  irreparable  injury  to  property  or  to  a 
property  right."  At  a  glance  you  will  observe 
that  while  the  old  equity  rule  is  retained  in  its 
full  force  so  far  as  most  of  the  elements  of  property 
are  concerned,  there  is  at  once  excluded  from  its 
protecting  shelter  the  labor  of  a  human  being.  In 
other  words,  if  the  labor  of  a  human  being  is  not 
property,  then  under  no  theory  of  equity  practice 
as  it  is  recognized  in  our  courts  or  in  the  courts 
of  England,  can  a  Chancellor  issue  an  injunction 
to  protect  a  man's  very  right  to  work. 

Pages 


Labor  is  property;   the  right  to  ?alor  is  a 
^ro^erty  right 

IET  me  pause  here  in  my  analysis  of  the  bill  to 
^  urge  upon  you  the  economic  fallacy  of  the 
proposition  that  labor  is  not  property.  What, 
after  all,  is  property,  from  an  economic  stand- 
point? Property  is  anything  which  a  man  owns 
or  controls  or  of  which  he  may  dispose.  It  con- 
sisted originally  of  lands  and  cattle.  It  consists 
now  of  buildings,  stocks  and  bonds,  personal 
property  of  many  kinds  and  all  the  various  things 
which  modern  society  in  its  complex  development 
has  evolved.  Lands  and  buildings,  and  cattle,  the 
stocks  and  bonds  of  corporations,  copyrights  and 
patents,  are  usually  the  property  of  wealthy  men. 
It  is  unfortunate  that  in  our  modern  world  all  men 
have  not  the  same  store  of  goods.  It  may  be  un- 
fortunate that  we  must  have  with  us  the  poor. 
But  these  are  social  faults  which  the  lawmaker 
cannot  cure.  What  then  is  the  principal  property 
of  the  poor  man,  whether  he  be  a  member  of  a 
labor  organization  or  not?  What  other  property 
has  the  poor  man  except  his  labor?  What  other 
property  can  he  dispose  of  to  provide  himself  and 
his  family  with  food,  clothing  and  shelter?  To 
say  to  a  laboring  man  that  his  ability  to  earn  $3 
or  $4  or  $5  a  day  with  which  to  support  his  family 
is  not  property  is  to  strip  him  at  once  of  all  the 
protection  which  our  constitutional  guarantees 
give  him.  In  my  own  case,  unfortunately  the 
only  property  I  possess  is  the  little  knowledge 
which  I  have  acquired,  and  the  ability  to  make 
that  knowledge  of  service  to  my  clients.  Shall  it 
be  said  that  my  ability  to  serve  a  client  for  com- 
pensation, indeed  my  very  ability  to  stand  before 

?age  h 


Your  Excellency  today  and  present  this  case  for 
the  organizations  which  are  so  vitally  interested,  is 
not  a  property  right?  Shall  it  be  said  that  inas- 
much as  this  right  is  not  property,  that  therefore 
I  can  have  no  protection  from  a  court  of  equity, 
no  protection  granted  me  by  the  laws  or  the  con- 
stitution of  this  land?  Can  it  be  economically 
true  that  the  workman  has  no  property  in  his 
labor?  That  the  years  of  patient  apprenticeship 
which  he  served  before  he  acquired  the  standing  of 
a  journeyman  shall  be  instantly  taken  from  him 
by  such  a  provision  as  this?  It  needs  no  citation 
to  Adam  Smith  or  John  Stuart  Mill  to  point  out 
the  very  apparent  sophistry  of  such  a  preposterous 
contention. 

It  is  not  necessary,  however,  to  accept  my 
statement  of  the  economic  principle  involved. 
Fortunately,  the  highest  courts  of  this  land  have 
finally  fixed  by  their  decisions  the  principle  for 
which  we  contend  that  all  labor  is  property  and 
a  property  right  coming  within  the  meaning  of 
our  constitutional  guarantees;  that  no  power  rests 
in  any  legislative  organization  under  the  guise  of 
definition  to  take  that  property  from  a  man  with- 
out first  compensating  him  for  it. 

Not  so  very  many  years  ago,  the  Supreme  Court 
of  the  United  States,  speaking  through  the  very 
eloquent  voice  of  Mr.  Justice  Harlan,  in  the  fa- 
mous case  of  Adair  v.  U.  S.,  reported  in  208  U.  S. 
at  page  161,  used  this  language  in  speaking  of  labor 
and  its  qualities  as  a  property  right: 


Pager 


**Such  liberty  and  right  embraces  the  right  to  make 
contracts  for  the  purchase  of  the  labor  of  others  and 
equally  the  right  to  make  contracts  for  the  sale  of  one's 
own  labor;  each  right,  however,  being  subject  to  the 
fundamental  condition  that  no  contract,  whatever 
its  subject  matter,  can  be  sustained  which  the  law, 
upon  reasonable  grounds,  forbids  as  inconsistent  with 
the  public  interests  or  as  hurtful  to  the  public  order 
or  as  detrimental  to  the  common  good." 

And  then  again: 

*'It  is  sufficient  in  this  case  to  say  that  as  agent  of 
the  railroad  company  and  as  such  responsible  for  the 
conduct  of  the  business  of  one  of  its  departments,  it 
was  the  defendant  Adair's  right — and  that  right  in- 
hered in  his  personalHberty,  and  was  also  a  right  of 
property — to  serve  his  employer  as  best  he  could,  so 
long  as  he  did  nothing  that  was  reasonably  forbidden 
by  law  as  injurious  to  the  public  interests." 

The  opinion  then  quotes  from  Cooley's  famous 
work  on  Torts: 

"  'It  is  a  part  of  every  man's  civil  rights  that  he  be 
left  at  liberty  to  refuse  business  relations  with  any 
person  whomsoever,  whether  the  refusal  rests  upon 
reason,  or  is  the  result  of  whim,  caprice,  prejudice  or 
malice.  With  his  reasons  neither  the  public  nor  third 
persons  have  any  legal  concern.  It  is  also  his  right 
to  have  business  relations  with  anyone  with  whom  he 
can  make  contracts,  and  if  he  is  wrongfully  deprived 
of  this  right  by  others,  he  is  entitled  to  redress.' " 

"That  the  right  to  work  is  j^ro^erty  cannot 
he  regarded  longer  as  an 
o^en  question 

IT  may  be  pertinent  at  this  time  to  call  attention 
to  the  fact  that  this  opinion  was  written  by  a 
Justice  of  our  Federal  Supreme  Bench  whose 
friendly  leaning  towards  labor  no  man  can  deny. 

Page  8 


Indeed,  my  good  opponent  a  short  while  ago 
pronounced  a  well  deserved  eulogy  upon  his  talents 
and  probity. 

While  on  this  subject,  I  want  to  read  to  you 
from  a  very  recent  decision  of  one  of  the  most 
eminent  State  courts  in  this  country,  in  a  case  in 
which  no  employer  was  directly  or  indirectly  in- 
volved,— the  case  of  Bogni  v.  Perottij  decided  in 
Massachusetts  last  May.  The  report  which  I  am 
about  to  read  from  may  be  found  in  Volume  224 
of  Massachusetts  Reports,  at  page  152.  This 
case,  as  I  have  said,  had  nothing  to  do  with  any 
dispute  between  union  men  and  their  employers. 
It  was  a  quarrel  between  two  different  labor 
organizations  as  to  which  labor  organization  had 
the  right  to  do  a  certain  class  of  work.  Disputes 
of  this  kind,  I  understand,  are  usually  termed 
jurisdictional  disputes  among  labor  union  men. 
In  this  jurisdictional  dispute,  one  of  the  unions 
sought  to  restrain  the  other  from  interfering  with 
its  members  in  the  doing  of  a  particular  class  of 
work.  The  members  of  the  defendant  union  in- 
voked the  provisions  of  a  Massachusetts  statute 
which  is  very  similar  to  ours.  I  may  say,  paren- 
thetically, that  for  the  last  year  or  two  there  has 
been  an  organized  effort  by  the  American  Federa- 
tion of  Labor  to  have  enacted  into  legislation  in 
all  the  states  an  anti-injunction  bill  which  is 
termed  the  "Model  Anti-Injunction  Bill.''  This 
so-called  model  anti-injunction  bill  was  enacted 
in  Massachusetts.  The  bill  in  full  you  will  find 
in  the  footnote  of  the  opinion  from  which  I  am 
reading.  It  starts,  like  our  act,  with  the  declara- 
tion that  it  shall  not  be  unlawful  for  workingmen 
and  women  to  organize,  etc.     The  language,  I 

Page  9 


believe,  is  identical.  Section  2  of  the  so-called 
model  anti-injunction  bill  is  also  practically 
identical.  Section  3  of  the  model  law  is  also  almost 
identical  with  Section  3  of  the  bill  before  you  now. 
The  Massachusetts  law  contained  no  provision 
for  a  trial  by  jury  of  contempt  cases,  but  Section 
4  of  the  Massachusetts  law  had  the  identical  lan- 
guage which  I  have  criticized,  and  which  appears 
in  Section  8  of  the  bill  before  you — "that  the  labor 
of  a  human  being  is  not  a  commodity  or  article  of 
commerce." 

With  this  brief  outline  of  the  Massachusetts 
law,  which  I  have  made  for  the  purpose  of  em- 
phasizing the  application  of  the  decision  to  this 
bill,  let  me  turn  again  to  the  Massachusetts  court 
case.  The  defendant  union  claimed  that  the  courts 
could  not  issue  an  injunction  on  account  of  this 
model  anti-injunction  bill.  There  were,  therefore, 
two  points  for  the  Massachusetts  Supreme  Court 
to  decide.  First,  was  the  provision  declaring  that 
the  labor  of  a  human  being  is  not  a  commodity 
constitutional?  Secondly,  could  courts  of  equity, 
notwithstanding  the  inhibition  of  the  statute, 
grant  writs  of  injunction  in  labor  cases?  Turning 
to  the  opinion,  and  omitting  the  introductory 
paragraph,  which  contains  merely  a  recital  of  the 
facts  which  have  already  been  set  before  you,  I 
beg  to  read  the  following  language  of  the  Supreme 
Court  of  the  State  of  Massachusetts. 

"That  the  right  to  work  is  property  cannot  be  re- 
garded longer  an  open  question.  It  was  held  in  Cor- 
nellier  v.  Haverhill  Shoe  Manufacturers  Association , 
221  Mass.  554,  at  page  560,  that  'The  right  to  labor 
and  to  its  protection  from  unlawful  interference  is  a 
constitutional  as  well  as  a  common  law  right.'    It  was 

Page  10 


said  in  Slate  v.  Stewart,  59  Vt.  273^  289,  'The  labor 
and  skill  of  the  workman,  be  it  of  high  or  low  degree, 
the  plant  of  the  manufacturer,  the  equipment  of  the 
fanner,  the  investments  of  commerce,  are  all  in  equal 
sense  property.'  In  the  Slaughter-House  cases,  16 
Wall.  36,  127,  in  the  dissenting  opinion  of  Mr.  Justice 
Swajrne,  but  respecting  a  subject  as  to  which  there 
was  no  controversy,  occur  these  words:  'Labor  is 
property,  and  as  such  merits  protection.  The  right 
to  make  it  available  is  next  in  importance  to  the  rights 
of  life  and  Hberty.'  It  was  settled  that  the  right  to 
labor  and  to  make  contracts  to  work  is  a  property 
right  by  Adair  v.  United  States,  208  U.  S.  161,  ITS- 
ITS,  and  Coppage  v.  Kansas,  236  U.  S.  1,  10.  Con- 
troversy on  that  subject  before  this  court  must  be 
regarded  as  put  at  rest  by  these  decisions.  The  right 
to  work  therefore,  is  property.     One  cannot  be  de- 

?>rived  of  it  by  simple  mandate  of  the  Legislature, 
t  is  protected  by  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  and  by  numerous 
guarantees  of  our  Constitution.  It  is  as  much  prop- 
erty as  the  more  obvious  forms  of  goods  and  mer- 
chandise, stocks  and  bonds.  That  it  may  be  also  a 
part  of  the  liberty  of  the  citizen  does  not  affect  its 
character  as  property.  It  was  said  in  Coppage  v.  Kan- 
sas, 236  U.  S.  1,  page  14,  'Included  in  the  right  of 
personal  liberty  and  the  right  of  private  property — 
partaking  of  the  nature  of  each — is  the  right  to  make 
contracts  for  the  acquisition  of  property.  Chief 
among  such  contracts  is  that  of  personal  employment, 
by  which  labor  and  other  services  are  exchanged  for 
money  or  other  forms  of  property.  If  this  right  be 
struck  down  or  arbitrarily  interfered  with,  there  is  a 
substantial  impairment  of  liberty  in  the  long-estab- 
lished constitutional  sense.* 

"Property  cannot  he  confiscated ' 

"No  discussion  is  required  to  show  that  it  is  beyond 
the  power  of  the  Legislature,  under  constitutions 
which  guard  the  individual  against  being  deprived  of 
property  without  due  process  of  law,  to  declare  without 
any  process  at  all  that  a  well  recognized  kind  of  prop- 
erty shall  no  longer  be  property.    'Lawful  property 

Page  J I 


cannot  be  confiscated'  under  the  guise  of  a  statute. 
Durgin  v.  Minot,  203  Mass.  26,  28.  When  legislative 
attempts  to  compel  the  deprivation  of  certain  com- 
paratively small  sums  of  money  without  due  process 
of  law  invariably  fail  (see  for  example,  Northern 
Pacific  Railway  v.  North  Dakota,  236  U.  S.  585;  Great 
Northern  Railway  v.  Minnesota,  238  U.  S.  340;  Chi- 
cago, Milwaukee  &  St.  Paul  Railroad  v.  Wisconsin, 
238  U.  S.  491;  Louisville  &  Nashville  Railroad  v.  Cen- 
tral Stockyards  Co.  212  U.S.  132),  it  is  manifest  that 
something  recognized  as  property  by  the  law  of  the 
land  cannot  be  extinguished  utterly. 

"A  further  effect  of  the  present  statute  is  to  deprive 
the  plaintiffs  of  the  equal  protection  of  the  laws.  The 
statute  provides  in  substance  that  the  property  right  to 
labor  of  any  individual  or  number  of  individuals  asso- 
ciated together  shall  not  be  recognized  in  equity  as 
property  when  assailed  by  a  labor  combination,  unless 
irreparable  damage  is  about  to  be  committed  upon 
property  or  a  property  right  as  there  defined  and  that 
no  rehef  by  injunction  shall  be  granted  save  in  like 
cases  for  which  there  is  no  relief  at  law.  That  a  man 
cannot  resort  to  equity  respecting  his  property  right 
to  work  in  the  ordinary  case  simply  because  he  is  a 
laboring  man,  and  that  he  cannot  have  the  benefit  of 
an  injunction  when  such  remedies  are  open  freely  to 
owners  of  other  kinds  of  property,  needs  scarcely  more 
than  a  statement  to  demonstrate  that  such  man  is  not 
guarded  in  his  property  rights  under  the  law  to  the 
same  extent  as  others. 


"The  courts  must  le  o^en  to  all  w^on 
tlie  same  terms  * 

"If  a  laborer  must  stand  helpless  in  a  court  while 
others  there  receive  protection  respecting  the  same 
general  subject  which  is  denied  to  him,  it  cannot  be 
said  with  a  due  regard  to  the  meaning  of  constitu- 
tional guarantees  that  he  is  afforded  'the  equal  pro- 
tection of  the  laws'  within  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States  and 
similar  provisions  of  our  own  Constitution.    The  right 

Page  12 


to  make  contracts  to  earn  money  by  labor  is  at  least 
as  essential  to  the  laborer  as  is  any  property  right  to 
other  members  of  society.  If  as  much  protection  is  not 
given  by  the  laws  to  this  property,  which  often  may 
be  the  owner's  only  substantial  asset,  as  is  given  other 
kinds  of  property,  the  laborer  stands  on  a  plane  infe- 
rior to  that  of  other  property  owners.  Absolute  equal- 
ity before  the  law  is  a  fundamental  principle  of  our 
own  Constitution .  To  the  extent  that  the  laborer  is  not 
given  the  same  security  to  his  property  by  the  law 
that  is  granted  to  the  landowner  or  capitalist,  to  that 
extent  discrimination  is  exercised  against  him.  It  is 
an  essential  element  of  equal  protection  of  the  laws 
that  each  person  shall  possess  the  unhampered  right 
to  assert  in  the  courts  his  rights,  without  discrimina- 
tion, by  the  same  processes  against  those  who  wrong 
him  as  are  open  to  every  other  person.  The  courts 
must  be  open  to  all  upon  the  same  terms.  No  obsta- 
cles can  be  thrown  in  the  way  of  some  which  are  not 
interposed  in  the  path  of  others.  Recourse  to  the  law 
by  all  alike  without  partiality  or  favor,  for  the  vindi- 
cation of  rights  and  the  redress  of  wrongs,  is  essential 
to  equality  before  the  law.  The  constitutional  prin- 
ciples are  discussed  in  Opinions  of  the  Justices,  211 
Mass.  618;  220  Mass.  627;  207  Mass.  601;  207  Mass. 
606,  611;  Smith  v.  Texas,  233  U.  S.  630;  Atchison, 
Topeka  &  Santa  Fe  Railway  v.  Voshurg,  238  U.  S.  56; 
Gulf  California,  Colorado  &  Santa  Fe  Railway  v.  Ellis, 
165  U.  S.  150;  Chicago,  Milwaukee  &  St.  Paul  Rail- 
way V.  Polt,  232  U.  S.  165;  St.  Louis,  Iron  Mountain 
&  Southern  Railway  v.  Wynne,  224  U.  S.  354. 

"Doubtless  the  Legislature  may  make  many  classi- 
fications in  laws  which  regulate  conduct  and  to  some 
extent  restrict  freedom.  So  long  as  these  have  some 
rational  connection  with  what  may  be  thought  to  be 
the  public  health,  safety  or  morals,  or  in  a  restricted 
sense,  'so  as  not  to  include  everything  that  might  be 
enacted  on  grounds  of  mere  expediency,'  the  public 
welfare,  they  offend  no  constitutional  provision. 
Commonwealth  v.  Strauss,  191  Mass.  545,  550. 
Weekly  payment  laws,  employers'  liability  acts,  work- 
men's compensation  acts,  inspection  laws  based  on 
the  number  of  employees,  and  numerous  statutes 
similar  in  principle  have  been  upheld.  See  Common- 
Page  13 


wealth  V.  Lihhey,  216  Mass,  356;  Young  v.  Duncan, 
218  Mass.  346,  353;  Booth  v.  Indiana,  237  U.  S.  391, 
and  Tannery.  Little,  240  U.  S.  369,  where  many  cases  are 
collected.  But  all  these  and  like  statutes  are  quite 
different  from  one  declaring  that  the  laboring  man 
either  alone  or  in  association  with  his  fellows  shall, 
as  to  his  property  right  to  work,  be  put  on  a  foot- 
ing of  inferiority  as  compared  with  owners  of  other 
kinds  of  property  when  he  appears  in  Court  respecting 
that  property  right.  It  is  primary  and  fundamental 
in  any  correct  conception  of  justice  that  the  laboring 
man  stands  on  a  level  equal  with  all  others  before  the 
courts.  Whatever  may  be  his  social  or  economic  con- 
dition outside,  when  he  enters  the  court  the  law  can 
permit  no  rule  to  fetter  him  in  the  prosecution  of  his 
claims  or  the  preservation  of  his  rights,  which  does 
not  apply  equally  to  all  others  respecting  the  same 
kinds  of  claims  and  rights." 


"The  objects  of  just  criticism  sitting  u^on 
the  hench  are  feiv^ 

1  PAUSE  at  this  point  in  the  decision,  because 
only  so  much  of  it  deals  with  the  question  we 
are  discussing.  Later  on,  however,  when  I  come 
to  argue  that  the  legislature  has  no  constitutional 
right  to  strip  from  courts  of  equity  their  inherent 
powers,  I  shall  revert  to  it  and  read  the  remainder 
of  the  opinion.  I  have  with  me  also  the  famous 
case  of  Cop'page  v.  Kansas  which  has  been  cited 
in  the  Massachusetts  case.  My  time  being  lim- 
ited, however,  I  shall  not  at  this  time  attempt  to 
read  from  it;  but  I  ask  the  Assistant  Attorney 
General  who  sits  by  your  side  to  make  a  note  of 
this  case  so  that  when  you  consult  him  as  to  these 
constitutional  questions  he  may  have  had  the 
benefit  of  reading  these  decisions  and  thus  verify 
the  statements  that  I  make  concerning  them. 


While  I  am  citing  from  the  decisions  of  the 
Supreme  Courts  of  various  States  of  the  United 
States  itself,  I  desire  to  state  that  I  was  a  little 
impatient  at  hearing  from  the  lips  of  my  antagon- 
ists such  severe  and  unjust  denunciation  of  our 
courts. 

It  is  not  impossible  in  any  country  to  find  now 
and  then  officials  who  do  not  measure  up  to  the 
full  requirements  of  their  office.  This  is  just  as 
true  of  those  discharging  executive  and  legislative 
functions  as  of  those  discharging  judicial  functions. 
Indeed,  I  believe  that  on  account  of  the  high 
training  our  judges  usually  attain,  the  objects  of 
just  criticism  sitting  upon  the  bench  are  few.  We 
cannot  lose  sight  of  the  fact  that  all  our  affairs 
must  be  regulated  by  human  instrumentalities, 
and  wherever  we  find  work  for  human  kind  to  do 
we  must  content  ourselves  with  the  occasional 
short-comings  due  to  purely  human  frailty  and 
imperfection. 

That  reverence  for  our  institutions  which  was 
implanted  in  me  from  very  earliest  days,  I  still 
retain,  I  am  thankful  to  say.  I  still  revere  the 
foimders  of  this  nation,  the  great  men  whose 
courage  gave  it  birth  and  whose  constructive 
statesmanship  gave  it  form. 

We  all  hold  in  cherished  memory  the  great  grasp 
of  government  fundamentals  in  the  minds  of  Alex- 
ander Hamilton,  Thomas  Jefferson,  John  Jay  and 
John  Marshall. 


Page  IS 


I  cannot  believe  that  what  the  revolutionary 
patriots  wrested  from  an  arrogant  power  and  con- 
structively formulated  into  organized  society  can 
be  all  bad.  They  believed  that  the  wisest,  safest 
and  most  beneficent  form  of  government  is  the 
one  containing  within  it  three  independent, 
though  co-ordinating,  departments — the  legisla- 
tive, executive  and  judicial.  These  men  fashioned 
for  the  future.  These  men  had  visions  of  differ- 
ences, disputes  and  clashes  that  might  arise  in  the 
remote  future  when  antagonistic  interests,  class 
selfishness  or  class  passion  might  become  an  acute 
phase  of  the  life  of  the  nation.  They  therefore 
gave  us  our  legislative  department,  which  was 
made  responsive  to  the  immediate  opinion  of  the 
people.  They  gave  us  an  independent  executive 
whose  tenure  was  of  different  duration,  and  to  him 
they  entrusted  the  power  of  final  approval  or  veto 
in  legislative  affairs.  Then  over  and  above  all 
they  created  a  court  and  immured  it,  if  you  will, 
in  the  seclusion  almost  of  abstraction.  To  this 
court,  far  removed  from  political  strife,  they  gave 
the  final  power  of  determining  whether  legislative 
enactments,  often  obtained  as  the  result  of  heat, 
or  passion,  or  fury,  responded  to  the  tests  of  the 
organic  law  of  the  land. 


TJnlridled  and  unjust  attacks  uj^on  the 
judiciary  resented 

UNDER  this  form  of  government  we  have 
thrived  and  grown  from  a  small  group  of 
colonies  on  the  Atlantic  shore  to  a  big  wide  nation 
whose  domain  embraces  the  width  of^the  continent 
itself.     Under  such  institutions  our  people  have 

Page  i6 


developed  as  rapidly  as — if  not  more  rapidly 
than — the  peoples  of  other  nations.  We  boast  of  a 
freer,  healthier  and  more  cheerful  population  in  this 
country  than  is  to'  be  found  anywhere  else.  Can 
it  he  that  suddenly ^  from  the  mouths  of  malcontentSy 
has  come  a  truth  of  which  we  never  dreamed  before? 
Can  it  be  that  the  prosperity  and  happiness  of 
this  nation  has  developed  and  spread  not  because 
of,  but  despite,  its  government  institutions?  I 
feel,  sir,  you  join  with  me  in  the  opinion  that 
guided  by  the  light  of  liberty  and  democracy 
which  our  liberal  governmental  forms  have  shed 
upon  the  individual  we  have  made  our  step-by- 
step  progress  and  shall  continue  to  do  so  as  long 
as  the  human  being  strives  for  self  improvement. 
With  this  feeling  of  true  patriotism,  with  this  rever- 
ence for  the  institutions  under  which  we  have  been 
born  and  reared,  I  will  not  listen  to  this  unbridled 
and  unjust  attack  upon  our  judiciary  without  re- 
senting it  as  best  lies  within  my  power.  Pardon 
me  for  this  diversion  from  the  subject  matter 
before  you,  but  I  feel  so  keenly  these  sentiments 
that  I  could  not  without  sacrifice  of  self  respect 
refrain  from  giving  them  utterance  at  this  time. 
Turning  again  to  the  bill,  I  call  your  attention 
to  Section  3.  Many  of  the  provisions  of  this  sec- 
tion make  no  innovation  in  our  existing  laws. 
They  are  principles  already  sanctioned  in  the  final 
decision  of  our  courts.  But  deftly  placed  here 
and  there  are  sentences  and  phrases  that  carry 
a  portent  of  danger.    Let  me  read  this  section. 

"No  such  restraining  order  or  injunction  shall  pro- 
hibit any  person  or  persons,  whether  singly  or  in  con- 
cert, from  terminating  any  relation  of  employment, 
or  from  ceasing  to  perform  any  work  or  labor,  or  from 
recommending,  advising,    or   persuading  others  by 

Page  17 


peaceful  means  so  to  do;  or  from  attending  at  any  place 
where  such  person  or  persons  may  lawfully  be,  for  the 
purpose  of  peacefully  obtaining  or  communicating  in- 
formation or  from  peacefully  persuading  any  person  to 
work  or  to  abstain  from  working;  or  from  ceasing  to 
patronize,  or  to  employ  any  party  to  such  dispute,  or 
from  recommending,  advising,  or  persuading  others 
by  peaceful  and  la\^^ul  means  so  to  do;  or  from  paying 
or  giving  to  or  withholding  from,  any  person  engaged 
in  such  dispute,  any  strike  benefits  or  other  moneys  or 
things  of  value;  or  from  peaceably  assembling  in  a 
lawful  manner,  and  for  lawful  purposes;  or  from  doing 
any  act  or  thing  which  might  lawfully  be  done  in  the 
absence  of  such  dispute  by  any  party  thereto." 

It  provides  generally  that  no  restraining  order 
shall  prohibit  any  person  from  ceasing  to  perform 
any  labor  or  from  recommending,  advising  or 
persuading  others  by  "peaceful"  means  so  to  do. 
I  call  your  attention  to  the  word  "peaceful"  and 
its  discriminating  use  throughout  the  section. 

The  use  of  this  word  "peaceful"  would  make 
the  statute  in  large  part  nullify  certain  provisions 
of  ordinances  enacted  in  the  State.  I  refer  to  the 
anti-picketing  ordinances  of  Los  Angeles,  San 
Francisco  and  Oakland.  When  I  speak  of  their 
enactment,  I  do  not  allude  to  the  ordinary  enact- 
ment of  legislation  by  the  legislative  bodies  of 
these  communities.  I  refer  to  the  fact  that  in  all 
of  these  cities  these  ordinances  were  enacted  by 
the  sovereign  power  of  the  people  themselves 
exerted  through  that  initiative  for  which  you,  sir, 
and  I  fought  six  or  seven  years  ago. 


Page  i8 


Significance  of  Anti -Picketing  Ordinances 

of  San  Francisco,  Los  Angeles 

and  Oakland 

TT  is  significant  that  in  many  of  the  communities  of 
-*  this  State  where  organized  labor  is  supposed  to  he 
all  powerful  politically  as  well  as  industrially y  these 
anti'picketing  ordinances  have  been  adopted  by  the 
vote  of  the  citizens — in  Los  Angeles  in  the  first  in- 
stance, then  in  San  Francisco;  and  finally  in  Oak- 
land. Let  me  turn  here  to  these  men  who  repre- 
sent labor,  and  who  have  represented  it  well,  and 
remind  them  of  the  fact  that  their  boast  is  that 
San  Francisco  is  a  labor  union  city;  that  San 
Francisco  is  controlled  poHtically,  as  well  as  eco- 
nomically, by  the  power  of  organized  labor.  Let 
me  remind  them  that  in  San  Francisco  where  labor 
is  claimed  to  be  all  powerful,  the  people  by  a  very 
decisive  vote  only  last  year  adopted  an  anti-picket- 
ing  ordinance  prohibiting  picketing  in  labor  strikes 
in  that  city.  So  likewise  did  Oakland,  supposed 
to  be  another  stronghold  of  organized  labor.  The 
people  themselves  through  the  exercise  of  their 
initiative  power  have  placed  upon  the  books  these 
local  laws. 

We  have  boasted  in  California  these  last  few 
years  that  as  a  result  of  a  political  revolution  the 
people  have  again  taken  unto  themselves  full 
sovereignty.  We  boast  that  today  we,  the  sov- 
ereign people,  enact  or  reject  legislation  as  suits 
our  sovereign  whim,  caprice  or  judgment.  We 
boast  of  the  fact  that  the  only  response  which  our 
chosen  officials  now  heed  is  the  will  of  the  people 
lawfully  expressed.  You  and  I,  sir,  were  partici- 
pants in  that  campaign  that  resulted  in  the  first 

Page  iQ 


enactment  into  the  laws  of  California  of  the  prin- 
ciple of  the  initiative  and  referendum.  We  have 
now  in  most  of  our  municipalities  the  same  initia- 
tive and  referendum  provisions.  This  is  because 
we  believe  democracy  is  to  be  trusted.  We  fought 
for  this  direct  allotment  of  legislative  power. 

To  return  to  my  subject,  in  all  the  cities  to  which 
I  have  referred  the  people  themselves,  in  that 
seclusion  and  secrecy  of  the  ballot  which  is  the 
American  citizen's  most  cherished  privilege,  have 
expressed  their  denunciation  of  the  methods  and 
principles  of  what  is  termed  the  **picket." 

With  this  in  mind,  let  me  call  your  attention  to 
the  fact  that  in  these  anti-picketing  ordinances  it 
is  provided  that  it  shall  be  unlawful  for  any  person 
on  any  public  street,  among  other  things  to  speak 
in  a  loud  or  unusual  tone  or  to  cry  out  or  proclaim 
for  the  purpose  of  inducing  or  influencing  or 
attempting  to  induce  or  influence  any  person  from 
doing  certain  things,  or  attempting  to  intimidate, 
threaten  or  force  people  to  do  certain  things  which 
they  do  not  want  to  do.  These  things  are  de- 
clared to  be  unlawful.  Many  of  our  crimes,  in 
fact  most  of  our  crimes,  are  not  crimes  of  violence, 
but  crimes  of  wrong  without  violence.  Fifty  men 
armed  with  axes  or  pick  handles  may  walk  up  and 
down  in  front  of  a  man's  twenty-five  foot  store 
front  and  never  utter  a  word  or  make  a  sign,  yet 
no  intelligent,  fair  man  will  contend  that  such 
conduct  is  not  wrongful,  and  if  such  conduct  is 
made  criminal,  can  any  man  contend  that  the 
criminal  element  does  not  justly  exist?  A  man 
need  not  shoot  me  to  take  from  me  my  purse;  he 
need  but  draw  a  revolver  and  point  it  in  my  direc- 
tion.   In  a  physical  sense,  no  violence  will  have 

Page  20 


been  committed,  but  in  every  sense  save  a  physical 
sense  my  purse  will  have  been  yielded  under 
the  duress  of  that  pointed  revolver.  So,  too,  if  I 
approach  a  man's  store  and  see  in  front  of  it 
twenty  big,  powerful  men  parading  up  and  down 
with  banners,  it  would  tax  a  child's  credulity  to 
believe  that  there  was  no  coercion,  intimidation 
or  threat  intended  in  such  a  maneuver. 

These  things  are  claimed  by  the  representatives 
of  organized  labor  to  be  peaceful  things:  and  if  so, 
under  the  bill  which  is  before  you  for  considera- 
tion, so  long  as  they  remain  peaceful  no  court  of 
equity  shall  issue  an  injunction  to  prevent  them. 
Under  the  ordinances  which  have  been  adopted 
by  the  people  themselves,  however,  such  conduct 
is  made  criminal.  Can  anyone  honestly  contend 
that  such  conduct  is  not  criminal  and  should  not 
be  deemed  so  by  the  criminal  laws  of  the  State? 
Yet  notwithstanding  this,  inasmuch  as  the 
Flaherty  anti-injunction  bill  No.  1035  forbids  in- 
junctions being  issued  to  restrain  peaceful  threats, 
if  such  there  can  be,  if  this  bill  becomes  a  law  and 
is  constitutional,  no  court  in  the  state  would  be 
permitted  to  issue  injunctions  restraining  fifty 
men  with  loaded  revolvers  or  with  pick  handles 
from  marching  up  and  down  in  front  of  a  man's 
place  of  business.  To  argue  that  such  should  be 
the  law  is  to  argue  that  chaos  is  the  right  form  of 
government.  Anarchy  and  syndicalism  have  not 
yet  become  enshrined  in  the  hearts  of  our  Ameri- 
can citizens  nor  become  a  part  of  their  conception 
of  free  institutions.  So  I  submit  that  this  provis- 
ion has  been  deftly  inserted  in  this  statute  for  the 
purpose  of  evading  the  further  application  of  the 
local  anti-picketing  ordinances;  and  I  submit  fur- 

Page  21 


therthat  to  tolerate  such  acts  as  I  have  described  to 
you,  to  sanction  them,  to  throw  about  them  the  pro- 
tection of  the  law,  would  be  unjust,  would  be  vicious 
and  would  be  destructive  of  the  very  safety  of  our 
society. 


*lo  ^yramii  trial  upon  trial  would  he  to 

initiate  anarchy  into  our 

social  system 

PASSING  this  point,  I  come  to  the  section  that 
I  beheve  is  the  most  vicious  in  this  Act.  I  go 
further — I  believe  it  contains  more  evil  than  any 
bit  of  legislation  that  will  pass  across  your  desk 
from  this  session  of  the  legislature.  Let  me  read 
it  to  you: 

**That  any  person  who  shall  wilfully  disobey  any 
lawful  writ,  process,  order,  citation,  decree  or  com- 
mand of  any  court  of  the  State  of  California,  by  doing 
any  act  or  thing  therein  or  thereby  forbidden  to  be 
done  by  him,  if  the  act  or  thing  so  done  by  him  be  of 
such  character  as  to  constitute  also  a  criminal  offense, 
shall  be  proceeded  against  for  his  said  contempt  as 
hereinafter  provided. ' ' 

A  very  superficial  thought  concerning  this  sec- 
tion would  not  disclose  the  ramifications  to  which 
its  evils  extend.  Our  first  instinct  is  heartfelt  ap- 
proval of  the  principle  of  jury  trial.  We  revert 
again  to  the  English  Bill  of  Rights  and  the  Habeas 
Corpus  act,  to  the  American  Declaration  of  Inde- 
pendence and  our  Constitution.  Dear  to  the 
heart  of  every  one  of  us  is  the  belief  that  no  man 
shall  be  tried  or  condenmed  except  upon  the  judg- 
ment of  his  peers. 


Page  22 


The  right  is  granted  every  man  to  a  trial.  When 
that  trial  has  been  accorded  him  and  the  contro- 
versy determined,  then  the  punitive  or  remedial 
arm  of  the  law  should  be  stretched  out  without 
further  halt.  Orderly  government  requires  an 
efficient  disposition  of  all  litigable  questions, 
whether  penal  or  civil.  Orderly  government  re- 
quires that  the  condemned  criminal  shall  be 
speedily  punished,  and  that  in  civil  cases  the  liti- 
gant shall  have  promptly  his  full  judgement  and 
relief  and  the  controversy  be  finally  terminated. 
To  pyramid  trial  upon  trial  would  be  to  initiate 
anarchy  into  our  social  system  and  bring  about  a 
silent  political  revolution.  The  principle  of  a 
jury  trial  in  contempt  cases  had  its  birth  in  a  polit- 
ical campaign.  You  will  recall  that  the  distin- 
guished son  of  Nebraska,  Mr.  W.  J.  Bryan,  first 
became  a  candidate  for  President  in  1896.  He 
made  his  campaign  upon  three  destructive  prin- 
ciples which  he  submitted  to  the  American  con- 
stituency— first,  free  silver;  second,  populism  in 
general,  and  third,  that  other  ^^ism''  of  his,  a  de- 
nunciation of  government  by  injunction.  I  am 
almost  bold  enough  to  state  that  you,  sir,  rejoice 
with  me  in  the  fact  that  the  eloquent  Nebraskan 
was  not  successful  in  his  candidacy.  Free  silver 
has  gone  into  the  discard,  where  it  properly  be- 
longs. Populism  had  its  mushroom  growth;  but, 
fortunately,  also  its  mushroom  death.  A  denun- 
ciation of  government  by  injunction  was  thrown 
from  every  political  platform  in  the  United  States 
in  the  campaigns  of  1896,  1900  and  1904.  Since 
the  American  commonwealth  has  silenced  the 
candidate  Bryan,  a  few  feeble  mutterings  of  his 
have  been  taken  up  by  people  who  are  seeking  to 
promulgate  his  fads  and  fancies  in  legislation. 


This  bill  is  one  such  effort.  Before  I  point  out  the 
direct  effect  of  this  principle  upon  our  jurispru- 
dence, I  want  to  invite  your  attention  again  to 
certain  fundamentals  upon  which  our  government 
is  based,  and  ask  your  further  attention  to  certain 
decisions  on  this  class  of  legislation. 


The  Anti 'Injunction  hill  would  trench 

uj^on  the  judicial  ^ower 

of  the  Courts 

THE  Governor's  powers  are  derived  from  the 
Constitution,  and  from  no  other  source.  The 
legislature  of  this  State  derives  its  powers  from 
our  Constitution,  and  from  no  other  source.  The 
judiciary  finds  its  powers  laid  down  in  the  Consti- 
tution and  nowhere  else.  You  cannot,  if  you 
would,  trench  one  tittle  upon  the  powers  of  the 
legislature  nor  upon  those  of  the  judiciary.  In 
turn,  the  legislature  cannot  interfere  with  the 
least  of  your  powers  nor  those  of  our  courts. 
Finally,  the  courts  are  limited  in  their  powers  by 
the  Constitution.  The  courts  of  our  State  are 
given  certain  powers  by  our  Constitution.  In 
Section  5  of  Article  VI  of  our  Constitution  we  find 
it  very  clearly  stated:  'The  superior  court  shall 
have  original  jurisdiction  in  all  cases  in  equity," 
etc.  In  Section  1  of  the  same  article  we  find 
"the  judicial  power  of  the  State  shall  be  vested  in 
the  Senate  sitting  as  a  court  of  impeachment,  in 
a  Supreme  Court,  District  Courts  of  Appeal, 
Superior  Courts,  and  such  inferior  courts  as  the 
legislature  may  establish,"  etc.  In  other  words, 
the  entire  power  of  judging  is  vested  in  the  courts. 
This  power  cannot  be  taken  away  by  a  co-ordinate 

Page  24 


department,  the  legislature.  Neither  can  it  be 
abridged  or  qualified.  Needless  to  say,  the  bill 
before  you  is  an  act  of  the  legislature.  Your 
approval  would  make  it  a  law.  If  that  law 
trenches  upon  the  judicial  power  of  the  courts  as 
it  is  given  to  them  by  the  Constitution,  the  law  is 
a  nullity.  To  illustrate:  Your  Excellency  is 
given  the  full  right  to  pardon.  This  right  you 
derive  from  the  Constitution  itself.  This  right 
cannot  be  taken  from  you  or  abridged  by  the 
legislature  or  by  the  courts.  Would  you  approve 
of  a  bill  which  should  provide  that  you  should  not 
grant  pardons  to  certain  kinds  of  offenders?  If  a 
bill  were  presented  to  you  which  provided  that 
any  man  who  is  convicted  of  an  act  of  violence 
upon  a  labor  union  member  could  not  be  pardoned 
by  the  Governor,  would  you  consider  that  bill 
constitutional?  No,  and  properly  not.  It  would 
not  be  constitutional  and  the  legislature  would 
have  no  power  to  pass  such  a  law  for  the  very  rea- 
son that  your  powers  of  pardon  come  direct  from 
the  source, — the  Constitution, — ^just  as  the  powers 
of  the  courts  come  from  the  same  source. 

I  am  fortified  in  my  position  by  the  decisions  of 
courts  of  last  resort  from  all  over  the  land,  includ- 
ing the  Supreme  Court  of  the  United  States.  I 
have  explained  how  this  theory  of  trial  by  jury  in 
contempt  cases  found  its  birth  in  the  political 
travail  of  W.  J.  Bryan.  While  Mr.  Bryan  was 
unsuccessful,  still  a  part  of  his  propaganda  per- 
meated some  of  the  rock-ribbed  democratic  states 
of  the  country.  These  states  barkened  in  some 
instances  to  his  siren  voice,  and  enacted  legisla- 
tion which  provided  jury  trials  in  contempt  cases 
Singularly   enough   in   all   of   these   democratic 

Page  25 


states,  as  rapidly  as  such  legislation  was  enacted, 
just  as  rapidly  was  it  declared  unconstitutional. 

The  first  case  I  want  to  read  from  is  Carter  v. 
Virginia,  reported  in  96  Virginia  Reports  at  page 
791.  In  that  State,  the  legislature  provided  for 
jury  trial  in  contempt  cases.  The  court  promptly 
determined  that  the  province  of  courts  of  chancery 
could  not  thus  be  invaded  by  the  legislature.  In 
the  course  of  the  opinion  the  court  said: 

''Our  conception  of  courts,  and  of  their  powers  and 
functions,  comes  to  us  through  that  great  system  of 
English  jurisprudence  known  as  the  common  law, 
which  we  have  adopted  and  incorporated  into  the 
body  of  our  laws. 

"That  the  English  courts  have  exercised  the  power 
in  question  from  the  remotest  period  does  not  admit 
of  doubt.  Said  Chief  Justice  Wilmot;  The  power 
which  the  courts  in  Westminster  Hall  have  of  vindi- 
cating their  own  authority  is  coeval  with  their  first 
foundation  and  institution;  it  is  a  necessary  incident 
to  every  court  of  justice,  whether  of  record  or  not,  to 
fine  and  imprison  for  a  contempt  acted  in  the  face  of 
the  court;  and  the  issuing  of  attachments  by  the 
Supreme  Court  of  Justice  in  Westminster  Hall  for 
contempts  out  of  court,  stands  on  the  same  immemor- 
ial usage  which  supports  the  whole  fabric  of  the  com- 
mon law;  it  is  as  much  the  lex  terrae,  and  within  the 
exception  of  Magna  Charta,  as  the  issuing  of  any 
other  legal  process  whatsoever.  I  have  examined 
very  carefully  to  see  if  I  could  find  out  any  vestiges  of 
its  mtroduction,  but  can  find  none.  It  is  as  ancient  as 
any  other  part  of  the  common  law.'  " 

The  opinion  then  quotes  from  a  famous  Federal 
case,  [/.  >S.  V.  Hudson,  7  Cranch,  32,  the  following 
statement: 


Page  26 


**  'Certain  implied  powers  must  necessarily  result 
to  our  courts  of  justice  from  the  nature  of  their  insti- 
tution. But  jurisdiction  of  crimes  against  the  State 
is  not  among  those  powers.  To  fine  for  contempt, 
imprison  for  contumacy,  enforce  the  observance  of 
order,  etc.,  are  powers  which  cannot  be  dispensed  with 
in  a  court,  because  they  are  necessary  to  the  exercise 
of  all  others;  and  so  far  our  courts,  no  doubt,  possess 
powers  not  immediately  derived  from  statute.'" 

The  Court  then  speaks  of  the  defendant  claim- 
ing the  right  of  trial  by  jury,  and  that  this  right  of 
trial  is  not  an  interference  with  the  power  of  the 
court.     To  this  the  Court  repHed: 

"To  this  view  we  cannot  assent.  It  is  not  a  ques- 
tion of  the  degree  or  extent  of  the  punishment  in- 
flicted. It  may  be  that  juries  would  punish  a  given 
offense  with  more  severity  than  the  court;  but  yet  * 
the  jury  is  a  tribunal  separate  and  distinct  from  the 
court.  The  power  to  punish  for  contempts  is  inherent 
in  the  courts,  and  is  conferred  upon  thena  by  the  con- 
stitution by  the  very  act  of  their  creation.  It  is  a 
trust  confided  and  a  duty  imposed  upon  us  by  the 
sovereign  people  which  we  cannot  surrender  or  suffer 
to  be  impaired  without  being  recreant  to  our  duty." 

Further  along  in  the  opinion  the  Court  used  this 
language: 

"Thus  we  see  that  offences  of  a  nature  personal  to 
the  court  are  to  be  punished  by  the  court,  while  those 
which  interest  suitors  are  punishable  only  by  a  jury. 
So  that  suitors  having  obtained  a  judgment  or  decree, 
after  long  and  expensive  litigation  find  the  court,  pow- 
erless to  secure  to  them  its  fruition  and  enjoyment 
and,  unless  their  antagonist  chance  to  be  a  law  abiding 
citizen,  discover  that  their  success  has  only  begotten 
another  controversy.  Ours  is  a  law  abiding  com- 
munity, and  good  citizens  will,  without  compulsion, 
respect  the  lawful  orders  of  their  courts;  but  in  every 
society  there  are  those  who  obey  the  laws  only  because 
there  is  behind  them  a  force  they  dare  not  resist.    Is 

Page  27 


it  wise  or  beneficent  legislation  which  accepts  the 
obedience  of  the  good  citizen,  but  is  powerless  to  en- 
force the  law  against  the  recalcitrant?  Under  this 
law  the  authority  of  the  courts  would  be  reduced  to 
a  mere  'power  of  contention.'  " 

I  commend  you  to  a  careful  reading  of  this 
opinion,  from  which  in  my  limited  time,  I  have 
been  confined  to  these  few  brief  excerpts.  The 
opinion  contains  an  exhaustive  analysis  of  the  phil- 
osophy as  well  as  the  history  of  chancery  powers. 

OklanoTna  declarea  unconstitutional  law 

requiring  contempt  cases  to 

he  tried  hy  jury 

IT  is  with  much  pleasure  that  I  read  from  an  Okla- 
homa decision.  I  speak  of  this  pleasure  because 
you  must  recall  that  Oklahoma  was  considered  the 
most  radical  and  most  socialistic  State.  Indeed, 
as  a  condition  to  its  admission  into  the  Union, 
Oklahoma  was  compelled  to  amend  its  first  pro- 
posed constitution.  Oklahoma  is  commonly 
called  the  home  of  populism,  of  the  bank  guaran- 
tees, of  poverty  guarantees,  and  of  all  the  panaceas 
for  all  the  ills  that  ever  afflicted  a  social  or  political 
community.  Naturally,  Oklahoma  was  exquis- 
itely sensitive  to  the  creed  of  Bryan,  and  passed 
such  a  law  as  he  advocated  requiring  contempt 
cases  to  be  tried  by  jury.  The  statute  was  tested 
in  the  Supreme  Court  in  the  case  of  Smith  v. 
Speed  reported  in  Volume  55,  Lawyers'  Reports 
Annotated,  at  page  402,  and  the  Court,  in  declar- 
ing the  statute  unconstitutional,  said: 


Page  28 


''If  the  contention  now  sought  for  by  the  plaintiff 
in  error  could  be  sustained,  it  would  go  to  the  extent 
that  the  court,  in  equitable  proceedings,  after  a  full 
hearing  and  a  final  determination  and  judgment  upon 
the  merits,  is  without  the  power  to  enforce  its  judg- 
ment by  the  imposition  of  a  pecuniary  penalty  or  im- 
prisonment, and  that,  in  the  endeavor  to  enforce  its 
judgment  by  proceedings  in  contempt,  it  would  be 
subject  to  have  its  final  judgment  brought  into  re- 
view in  the  contempt  proceedings  upon  a  change  of 
judge  or  of  venue,  to  a  completely  new  jurisdiction, 
and  to  a  trial  by  jury,  in  which  the  merits  of  the  final 
order  which  has  been  made  by  the  court  in  the  pro- 
ceedings should  again  be  reviewed,  including  the 
question  whether  there  was  any  merit  or  right  or 
authority  of  the  court  in  the  equitable  proceeding  in 
which  the  judgment  had  been  rendered  or  the  order 
made;  and  the  equitable  jurisdiction  of  the  district 
court  upon  matters  finally  determined  would  thus  be 
subject  to  be  again  brought  in  question  by  another 
judge  in  another  venue,  and  hj  a  jury — a  thing  un- 
heard of  in  the  chancery  jurisdiction.  If  such  a  state 
of  things  could  be,  it  could  but  result  in  the  degrada- 
tion of  courts,  and  to  make  them  truly  the  subjects  of 
contempt.  If,  in  the  progress  of  steps  tending  to 
demolish  the  equitable  jurisdiction  of  the  district 
courts  and  judges,  the  point  should  now  in  this  case 
be  reached,  and  it  now  be  held,  that  neither  the 
courts  nor  the  judges  have  authority  or  jurisdiction  to 
enforce  the  orders  which  it  is  their  duty  to  make,  but 
that  the  proceedings  in  contempt  requisite  to  enforce 
such  orders  are  to  be  subjected  to  trial  by  jury,  re- 
moved to  another  county,  and  tried  before  another 
judge,  there  is  no  reason  why  an  act  of  the  legislature 
may  not  also  be  passed,  and  held  to  be  just  as  effective, 
which  would  undertake  to  submit  the  contempt  pro- 
ceedings to  the  jurisdiction  of  a  justice  of  the  peace, 
either  in  the  county  where  the  violation  of  the  court's 
order  occurred,  or  in  some  other  county;  and  in  that 
event  the  immense  and  beneficent  jurisdiction  in 
chancery,  the  result  of  the  labors  of  Nottingham, 
Hardwicke,  Thurlow,  and  Eldon,  and  others  of  the 
great  English  Chancellors  who  have  so  largely  enun- 
ciated this  jurisdiction,  and  of  the  equally  eminent 
judges  of  our  own  Supreme  Court,  from  Chief  Justice 

Page  2Q 


Marshall  to  our  own  day;  who  have  joined  in  its  con- 
firmation, would  be  subjected  to  the  supremacy  of 
justices  of  the  peace,  with  their  juries. 

"No  reputable  lawyer  would  consent  to  occupy  the 
bench  in  such  a  condition  of  things,  and  this  court 
would,  if  it  could  abide  such  a  contention  and  pros- 
pect, be  instrumental  in  destroying  the  chancery  jur- 
isdiction which  they  were  appointed  to  uphold.  But 
such  is  not  the  law.  The  equitable  jurisdiction  of  the 
courts  and  judges  is  not,  perhaps,  as  generally  appre- 
hended at  large,  but  is  well  understood  by  the  en- 
lightened knowledge  of  the  bar,  and  is  capable  of  as 
succinct  and  definite  ascertainment  as  is  the  right  of 
trial  by  jury  at  the  common  law." 

Later  in  the  same  opinion,  the  Court  uses  this 
significant  language: 

"It  can  not  be  conceded  that  the  right  to  punish  a 
contempt  may  be  turned  over  by  the  legislature  to  a 
separate  tribunal.  It  was  said  by  the  Supreme  Court 
of  the  United  States  in  Eilenbecker  v.  PlymoiUh 
County  Dist.  Ct.  134  U.  S.  36,  33  L.  Ed.  803,  10  Sup. 
Ct.  Rep.  426,  that  'if  it  has  ever  been  understood  that 
proceedings  according  to  the  common  law  for  con- 
tempt of  court  have  been  subject  to  the  right  of  trial 
by  jury,  we  have  been  unable  to  find  any  instance  of 
it.'  And  in  Interstate  Commerce  Commission  v.  Breim- 
son,  154  U.  S.  447,  448,  38  L.  Ed.,  1047,  14  Sup  Ct. 
Rep.  1125,  it  was  again  said  that  'surely  it  can  not  be 
supposed  that  the  question  of  contempt  of  the  au- 
thority of  a  court  of  the  United  States,  committed 
by  a  disobedience  of  its  orders,  is  triable,  of  right,  by 
a  jury.'"  (55  L.  R.  A.  406,  407). 

It  should  be  borne  in  mind,  that  populism,  fad- 
ism,  and  all  the  ^ 'isms' ^  known  to  political  cru- 
saders started  from  Oklahoma  and  ran  their  fu- 
rious course  over  the  Middle  West  as  did  the 
prairie  fires  of  a  generation  ago. 


Page  30 


Let  us  step  a  bit  further  south  of  the  Mason  and 
Dixon  line,  into  North  Carolina.  The  legislature 
had  limited  the  authority  of  courts  in  contempt 
cases.  The  Supreme  Court  of  that  State  in  the 
matter  of  McCown,  reported  in  volume  139  of  the 
North  Carolina  Reports,  at  page  95,  in  a  very- 
exhaustive  review  of  the  powers  of  courts  as  dis- 
tinguished from  the  other  departments  of  govern- 
ment said : 

"The  constitution  provides  for  a  distinct  separa- 
tion of  the  three  co-ordinate  branches  of  the  govern- 
ment and  vests  the  judicial  power  in  the  several 
courts  mentioned  in  Article  IV,  Section  2.  It  further 
provides  that  the  general  Assembly  shall  not  deprive 
the  judicial  department  of  any  power  of  jurisdiction 
which  rightfully  pertains  to  it.  Article  IV,  Section 
12.  If  the  power  to  attach  for  a  direct  contempt  is 
inherent  in  the  courts  and  necessary  to  their  vitality 
and  usefulness,  any  interference  with  its  exercise 
which  prevents  the  courts  from  proceeding  against 
contumacious  or  disorderly  persons  must  needs  be  a 
deprivation  of  the  power.  But  argument  is  not  re- 
quired to  establish  so  plain  a  proposition.  Rapalje, 
at  page  13,  Section  11,  says:  'In  the  absence  of  a  con- 
stitutional provision  on  the  subject,  the  better  opinion 
seems  to  be  that  legislative  bodies  have  not  power  to 
limit  or  regulate  the  inherent  power  of  courts  to 
punish  for  contempt.  This  power  being  necessary  to 
the  very  existence  of  the  court,  as  such,  the  Legisla- 
ture has  no  right  to  take  it  away  or  hamper  its  free 
exercise.  This  is  undoubtedly  true  in  the  case  of  a 
court  created  by  the  Constitution.  Such  a  court  can 
go  beyond  the  provisions  of  the  statute,  in  order  to 
preserve  and  enforce  its  constitutional  powers,  by 
treating  as  contempts  acts  which  may  clearly  invade 
them.' " 


Page  31 


Georgia  likewise  declined  to  limit  ^ower  of 
judiciary  to  punish  for  contempt 

PROCEEDING  further  south,  to  the  State  of 
Georgia,  where  the  legislature  had  likewise  at- 
tempted to  limit  the  powers  of  the  judiciary  to 
punish  for  contempt,  the  Supreme  Court,  in  the 
ease  of  Bradley  v.  Georgia^  reported  in  111 
Georgia,  at  page  168,  used  the  following  language: 

"The  power  to  punish  for  contempt  is  inherent  in 
every  court  of  justice.  It  is  absolutely  necessary  that 
a  court  should  possess  this  power  in  order  that  it  may 
carry  on  the  administration  of  justice  and  preserve 
order  and  decorum  in  the  court.  As  far  as  we  can  as- 
certain, this  power  has  existed  since  courts  were  first 
established.  Judge  Wilmot,  in  1795,  in  a  treatise  up- 
on the  subject,  said  he  had  been  unable  to  find  where 
it  was  first  exercised,  but  in  his  opinion  it  was  as  old 
as  the  courts  themselves.  All  the  courts,  in  their  de- 
cisions, and  all  the  text  writers  lay  down  the  same 
doctrine — that  this  power  is  necessary  to  all  courts, 
and  is  inherent  in  them.  It  is  so  well  established  that 
we  deem  it  unnecessary  to  cite  authorities  upon  the 
subject.  This  power  being  inherent  and  necessary, 
can  the  legislature  by  defining  what  are  contempts, 
y  limit  the  courts  to  treating  as  contempts  such  acts 
only  as  are  embraced  in  the  legislative  definition?  In 
the  formation  of  our  Government,  Federal  and  State, 
the  three  departments  of  government  were  in  each 
constitution  ordained  to  be  separate,  distinct  and 
independent  of  each  other.  No  one  of  them  had  any 
right  or  power  to  infringe  upon  the  power  or  jurisdic- 
tion of  the  other,  without  an  express  constitutional 
provision  granting  this  right  or  power.  The  legisla- 
ture cannot  take  away,  restrict,  or  modify  any  of  the 
powers  conferred  by  the  constitution  upon  the  execu- 
tive. Nor  can  the  executive  infringe  upon  the  powers 
of  the  legislature.  Nor  can  either  the  legislative  or 
executive  abridge  the  powers  conferred  by  the  consti- 
tution upon  the  courts,  unless  express  authority  is 
given.  Each  of  these  departments  represents  the 
sovereignty  of  the  people.    Indeed,  the  executive,  the 

Page  32 


legislature  and  the  judiciary  are  but  the  servants  and 
agents  of  the  people.  To  each  department  the  people 
have  given  certain  powers,  and  have  declared  that 
neither  of  the  other  departments  shall  interfere  there- 
with. The  people  have  entrusted  these  servants  or 
agents  with  the  duty  of  carrying  out  their  will,  and  for 
that  purpose,  in  one  of  these  departments,  they  have 
by  their  organic  law  estabhshed  certain  courts. 
Among  these  are  the  superior  courts.  •  When  these 
courts  were  established  by  the  constitution,  they  were 
estabhshed  with  all  the  rights  and  powers  possessed 
by  all  courts  of  record  prior  to  that  time.  Among 
these  powers  were  that  of  defining  and  punishing  con- 
tempts of  court,  whether  such  contempts  were  direct, 
that  is,  committed  in  the  presence  of  the  court,  or  con- 
structive, interfering  indirectly  with  the  administra- 
tion of  justice.  This  power  was  incident  to  the  court 
itself,  and  belonged,  not  to  the  judges  as  individuals, 
but  to  the  court.  The  courts  established  by  the  con- 
stitution were  established  by  the  people,  and  repre- 
sented the  majesty  of  the  people.  Whoever  disobeyed 
an  order  of  such  a  court,  or  was  in  contempt  of  its 
proceedings,  or  did  anything  which  tended  to  impede 
or  corrupt  the  administration  of  justice  committed  a 
contempt  against  the  majesty  of  the  people.  Without 
power  and  ability  to  preserve  order  and  decorum,  to 
preserve  the  purity  of  jury  trial  and  to  enforce  their 
own  orders,  and  the  like,  courts  could  not  carry  out  the 
wishes  of  the  people.  The  courts  established  by  the 
constitution  were  therefore  vested  with  all  these 
necessary  powers — powers  which  were,  at  common 
law,  possessed  by  the  courts  of  record.  Whatever  a 
court  of  record  could,  under  the  common  law,  punish 
as  a  contempt,  these  courts  had  power  to  deal  with  as 
a  contempt.  This  power  came  to  them  as  much  as 
did  the  common  law.  Indeed,  it  is  a  part  of  the  com- 
mon law. — 1  Bailey  on  Jur.,  No.  297.  When  the 
constitutional  convention  established  our  courts,  it 
vested  in  them  all  the  power  necessary  to  carry  out 
the  purposes  for  which  they  were  designed.  Such  a 
court,  established  with  such  powers,  is  not  in  the 
exercise  of  these  powers  subject  to  legislative  control. 
The  superior  court  is  a  constitutional  court,  estab- 
lished with  these  powers,  and  the  legislature  has  no 
right,   without  express  constitutional  authority,   to 

Page  33 


abridge,  restrict,  or  modify  either  its  jurisdiction  or 
its  powers."— (50  L.  R.  A.  692). 


The  decision  in  tJie  Dehs  case 

IT  will  not  be  seriously  denied  that  Mr.  Bryan's 
appeal  of  1896  was  fed  largely  upon  the  indus- 
trial discontent  that  came  after  the  great  railroad 
strikes  of  the  early  90's.  The  famous  case  of  Debs 
had  created  discussion  all  over  the  union.  It  will 
likewise  be  recalled  that  Debs,  in  attacking  the 
jurisdiction  of  the  Federal  judiciary,  had  brought 
up  the  very  point  in  question  here.  The  United 
States  Supreme  Court,  however,  in  the  Debs  case 
reported  in  volume  158,  of  the  United  States 
Supreme  Court  Reports,  at  page  564,  answered 
this  contention  as  follows: 

"But  the  power  of  a  court  to  make  an  order  carries 
with  it  the  equal  power  to  punish  for  a  disobedience 
of  that  order,  and  the  inquiry  as  to  the  question  of 
disobedience  has  been,  from  time  immemorial,  the 
special  function  of  the  court — and  this  is  no  technical 
rule.  In  order  that  a  court  may  compel  obedience  to 
its  orders  it  must  have  the  right  to  inquire  whether 
there  has  been  any  disobedience  thereof.  To  submit 
the  question  of  disobedience  to  another  tribunal,  be 
it  a  jury  or  another  court,  would  operate  to  deprive 
the  proceeding  of  half  its  efficiency." 

Since  then,  in  defining  what  is  meant  by  the 
judicial  power  of  the  United  States,  the  same 
court  in  the  case  of  Kansas  v.  ColoradOj  206  U.  S. 
46,  made  this  declaration: 

"Speaking  generally,  it  may  be  observed  that  the 
judicial  power  of  a  nation  extends  to  all  controversies 
justiciable  in  their  nature,  the  parties  to  which  or  the 
property  involved  in  which  may  be  reached  by  judicial 

Page  34 


process,  and  when  the  judicial  power  of  the  United 
States  was  vested  in  the  Supreme  and  other  courts, 
all  the  judicial  power  which  the  nation  was  capable 
of  exercising  was  vested  in  those  tribunals,  and 
unless  there  be  some  limitations  expressed  in  the 
Constitution  it  must  be  held  to  embrace  all  controver- 
sies of  a  justiciable  nature  arising  within  the  terri- 
torial limits  of  the  Nation,  no  matter  who  may  be  the 
parties  thereto.  This  general  truth  is  not  inconsistent 
with  the  decisions  that  no  suit  or  action  can  be  main- 
tained against  the  Nation  in  any  of  its  courts  without 
its  consent,  for  they  only  recognize  the  obvious  truth 
that  a  Nation  is  not  without  its  consent  subject  to  the 
controlling  action  of  any  of  its  instrumentalities  or 
agencies.    The  creature  cannot  rule  the  creator.'' 

Again,  and  most  recently,  in  the  memorable 
case  of  Gompers  vs.  Buck  Stove  &  Range  Co,,  re- 
ported in  volume  221  of  the  Reports  of  the  Su- 
preme Court  of  the  United  States,  at  page  418, 
that  august  tribunal  said: 

**If  a  party  can  make  hiniself  a  judge  of  the  validity 
of  orders  which  have  been  issued,  and  by  his  own  act 
of  disobedience  set  them  aside,  then  are  the  courts 
impotent,  and  what  the  Constitution  now  fittingly 
calls  the  'judicial  power  of  the  United  States'  would 
be  a  mere  mockery. 

"This  power  'has  been  uniformly  held  to  be  neces- 
sary to  the  protection  of  the  court  from  insults  and 
oppressions  while  in  the  ordinary  exercise  of  its  duties, 
and  to  enable  it  to  enforce  its  judgments  and  orders 
necessary  to  the  due  administration  of  law  and  the 
protection  of  the  rights  of  suitors.'  (Vessette  v.  Conkeijj 
194  U.  S.  324,  333.) 

"There  has  been  general  recognition  of  the  fact 
that  the  courts  are  clothed  with  this  power  and  must 
be  authorized  to  exercise  it  without  referring  the  is- 
sues of  fact  or  law  to  another  tribunal  or  to  a  jury  in 
the  same  tribunal.  For  if  there  was  no  such  authority 
in  the  first  instance  there  would  be  no  power  to  enforce 

Page  35 


its  orders  if  they  were  disregarded  in  such  independent 
investigation.  Without  authority  to  act  promptly 
and  independently  the  courts  could  not  administer 
pubHc  justice  or  enforce  the  rights  of  private  litigants." 

Let  me  revert  now  to  the  Massachusetts  case 
from  which  I  read  in  the  early  part  of  my  argu- 
ment: 

"It  has  been  argued  that  since  the  equitable  juris- 
diction of  the  court  is  largely  statutory,  Parker  v. 
Simpson,  180  Mass.  334,  350,  it  may  be  curtailed  by 
the  legislature  in  respect  of  the  power  to  grant  in- 
junctions. It  is  one  thing  to  affect  the  scope  of 
equity  by  extending  or  restricting  the  branches  of 
that  jurisprudence  which  courts  may  administer; 
it  is  a  quite  different  matter  to  enact  that  some  citi- 
zens may  resort  to  it,  while  others  may  not. 

"Without  discussing  other  aspects  of  this  proposi- 
tion, it  is  enough  to  say  that  the  power  of  courts  to 
afford  injunctive  relief  cannot  be  impaired  by  the 
legislature  in  such  a  way  as  to  prevent  its  use  in  favor 
of  one  property  owner,  when  it  is  preserved  for  the 
benefit  of  other  property  owners.  It  is  an  elementary 
principle  of  equity  that  an  injunction  never  is  issued 
except  to  prevent  irreparable  injury.  If  the  statute 
means  anything  more  than  this,  there  would  be  other 
diflSculties  about  its  construction  which  need  not  now 
be  elaborated." 

I  could  weary  you  with  a  repetition  of  authori- 
ties from  the  highest  courts  in  all  the  states  of  this 
land  in  support  of  the  proposition  that  I  urge; 
but  with  the  decisions  already  quoted  of  some  of 
the  most  respected  of  our  State  courts,  fortified 
as  they  are  by  the  decisions  of  the  highest  court 
of  our  Federal  government,  I  feel  it  unnecessary  to 
go  further. 


Page  36 


The  Clayton  Act  not  to  be  compared 
with  this  bill 

PASSING  the  question  of  the  constitutionality 
of  this  statute,  which  I  assume  you  will  take 
up  in  serious  conference  with  the  Assistant  Attor- 
ney General,  I  want  a  moment  of  your  time  in 
presenting  my  views  of  its  practical  operation. 
You  have  been  told  that  the  enactment  of  the 
Flaherty  bill  now  before  you  would  give  the  State 
of  California  in  effect  the  provisions  of  the  Clayton 
anti-injunction  act.  Superficially  this  is  true,  but 
substantially  it  is  untrue,  and,  I  must  now  be- 
lieve, knowingly  false.  In  California  we  have  a 
large  body  of  substantive  law,  which  is  to  be 
found  in  several  thousand  different  sections  of  our 
Civil  Code,  as  well  as  in  an  almost  equal  number 
of  sections  of  our  Criminal  Code  and  in  many 
statutes  in  addition.  The  Federal  government 
has  no  such  body  of  substantive  laws.  Its  powers, 
being  delegated  powers,  are,  therefore,  limited 
powers.  The  Federal  law  has  little  to  do  with 
aught  but  interstate  commerce,  foreign  commerce, 
patents,  copyrights  and  the  like.  Therefore, 
when  the  Clayton  act  provides  that  all  contempts 
which  are  of  themselves  criminal  offenses  shall  be 
triable  by  a  jury  it  has  a  very  limited  application. 
I  have  in  my  hand  here  a  list  of  eighty  odd  sec- 
tions of  our  California  Criminal  Code  alone  which 
make  certain  acts  criminal  offenses,  acts  which  of 
themselves  involve  no  moral  turpitude  nor  any 
immoral  conduct,  but  acts  which  have  been  de- 
clared to  be  criminal  merely  to  safeguard  and  pro- 
tect pubhc  and  property  rights.  It  is  unlawful, 
for  instance,  for  the  directors  of  a  corporation  to 
declare  dividends  from  aught  save  surplus  profits 

Page  37 


of  the  corporation,  and  when  the  directors  of  a  cor- 
poration do  so  they  are  guilty  of  a  misdemeanor. 

All  misdemeanors  are  criminal  offenses.  There- 
fore if  a  court  of  our  State  should  issue  its  injunc- 
tion restraining  the  directors  of  a  corporation 
from  illegally  declaring  and  paying  out  dividends, 
and  the  directors  of  a  corporation  should  wantonly 
defy  the  order  of  the  court,  the  court  would  be 
without  power  to  punish  the  directors.  These 
directors  would  have  the  right  to  a  trial  by  jury, 
because  what  they  did  was  a  criminal  offense. 
It  is  likewise  a  misdemeanor  and  therefore  a 
criminal  offense  to  divert  water  from  a  ditch, 
flume  or  aqueduct  that  does  not  belong  to  the 
party  causing  the  diversion.  It  is  a  misdemeanor 
to  pollute  streams,  or  pollute  air.  It  is  a  misde- 
meanor to  trespass  upon  lands  belonging  to  an- 
other. It  is  a  misdemeanor  to  conduct  a  bawdy 
house  or  house  of  prostitution,  and  so  on.  As  I 
said  at  the  outset,  I  have  here  for  your  use  a  list 
of  at  least  eighty  such  offenses,  none  having  any- 
thing to  do  with  the  differences  occurring  between 
capital  and  labor.  Let  us  take  any  one  of  these 
cases  and  see  what  the  effect  of  this  statute  would 
be  if  it  should  become  a  law.  San  Francisco  today 
is  doing  what  Los  Angeles  did  five  or  six  years 
ago  in  the  Owens  River — acquiring  certain  rights 
to  water  in  the  Tuolumne  River.  Some  of  those 
rights  have  been  acquired  after  litigation.  In  those 
suits  in  which  the  City  has  prevailed,  the  City  has 
been  adjudged  to  be  the  owner  of  certain  waters  and 
the  judgment  has  contained  within  its  terms  an 
injunction  restraining  the  farmers  along  the  Tu- 
olumne river  from  diverting  or  taking  this  water. 


Page  38 


That  judgment  is  now  pending  on  appeal  in  our 
Supreme  Court.  Let  us  assume  that  the  Supreme 
Court  affirms  that  judgment.  Let  us  assume  that 
thereafter  the  farmers  along  the  Tuolumne  river, 
despite  the  injunction,  continue  to  divert  the  waters 
which  have  been  determined  to  be  the  property 
of  the  City  of  San  Francisco.  Under  this  Act 
would  the  Supreme  Court  have  power  summarily 
to  punish  the  offenders  and  enforce  respect  for  its 
decree?  Not  at  all.  Under  the  provisions  of  this 
bill,  the  offender  would  have  to  be  cited ;  he  would 
be  entitled  to  a  jury  trial  according  to  the  prac- 
tices and  forms  prevailing  in  ordinary  misde- 
meanors. This  man  then  would  be  tried  in  his 
own  township  among  his  own  farmer  neighbors, 
all  of  whom  are  directly  interested  in  taking  the 
water  which  has  been  determined  to  be  the  prop- 
erty of  the  people  of  San  Francisco.  In  such  a 
trial  before  a  jury  of  twelve  men  the  law  would 
require  a  unanimous  verdict.  If,  therefore,  but 
one  man  upon  that  local  jury  of  twelve  men  along 
the  Tuolumne  river  should  vote  not  guilty, 
whether  that  man  be  interested  or  disinterested, 
whether  he  be  the  leader  of  the  community  or  a 
humble  workman  in  a  little  town,  it  would  lie 
within  his  power  to  nullify  the  solemn  adjudica- 
tion of  the  highest  court  of  our  State,  and  there- 
by make  property  determinations  valueless. 


Page  39 


Under  this  hiJJ  the   courts  could  not  enforce 
their  own  mandates 

TAKE  another  case:  The  smelters  in  Kennet 
have  been  restrained  by  final  injunction  from 
using  their  smelters  because  of  the  destruction 
wrought  to  vegetation  and  forests  for  40,  50  and 
60  miles  south — into  Shasta  County.  Suppose 
this  law  goes  into  effect,  and  suppose  the  manager 
of  the  smelters  orders  the  fires  started,  and  the 
fumes  again  burst  from  the  chimney,  spreading 
their  poisonous  deposits  upon  the  orchards  and 
farm  lands  to  the  south.  Such  an  act  would  be  in 
flagrant  disobedience  of  the  existing  judgment  in 
the  litigation  that  has  been  finally  determined. 
Would  the  Court  have  power  to  compel  him  to 
stop?  Would  the  Court  have  power  to  punish  him? 
Would  the  Court  have  power  to  uphold  its  own 
dignity  and  insist  upon  respect  for  its  own  man- 
dates? Not  at  all.  This  man,  guilty  of  deliberate 
disobedience  of  the  final  order  of  the  Court,  under 
the  provisions  of  this  bill  would  have  the  right 
to  a  trial  by  jury,  and  in  the  township  of  Kennet. 
Kennet,  as  we  all  know,  is  a  little  town  dependent 
entirely  upon  the  operation  and  the  prosperity  of 
the  smelters.  Is  it  reasonable  to  believe  that  a 
jury  of  twelve  men  living  in  Kennet,  depending 
for  their  livelihood  upon  the  prosperity  of  the 
smelters  of  Kennet  would  hold  the  defendant 
guilty  on  such  a  trial?  Credulity  hardly  war- 
rants the  belief. 


Page  40 


The  Anti -Injunction  hill  would  revolutionize 
our  judicial  procedure 

TAKE  still  another  case:  the  people  of  this 
State  recently  passed  a  Redlight  Abatement 
bill.  Under  the  terms  of  this  statute,  when  a  court 
finds  and  determines  that  property  is  used  for  pur- 
poses of  prostitution,  a  judgment  is  issued  deter- 
mining that  this  property  shall  be  condemned,  and 
enjoining  the  use  of  it  for  a  fixed  period  of  time. 
What  becomes  of  the  RedHght  Abatement  law? 
If  the  Court  issues  its  injunction  under  the  pro- 
visions of  that  law,  it  cannot  enforce  it.  In  San 
Francisco,  I  understand,  the  experience  of  our 
police  courts  is  that  they  cannot  secure  convic- 
tions of  women  guilty  of  prostitution,  even  where 
their  guilt  is  practically  confessed.  If  the  present 
measure  becomes  a  law,  you  might  just  as  well 
wipe  from  the  statute  book  the  Redlight  Abate- 
ment law. 

Nor  must  I  forget  to  call  your  attention  to  the 
fact  that  in  California  all  contempts  are  them- 
selves made  misdemeanors,  and  therefore  criminal 
offenses.  Section  166  of  our  Penal  Code  expressly 
says  that  every  person  guilty  of  any  contempt  of 
court  of  the  kinds  enumerated  in  the  section  is 
guilty  of  a  misdemeanor.  Then  the  section  con- 
tinues with  a  definition  that  embraces  almost 
every  known  form  of  contempt.  It  has  been  very 
seriously  urged  that  inasmuch  as  all  these  con- 
tempts are  themselves  misdemeanors,  therefore, 
under  the  language  of  the  statute  before  you,  all 
contempt  cases  would  have  to  be  tried  by  a  jury. 
My  own  opinion  is  that  the  bill  would  probably 
receive  such  a  construction.  If  so,  the  bill  will 
accomplish  a  revolution  in  our  judicial  procedure. 

Page  41 


I  could  go  on  right  down  the  list  of  which  I 
have  spoken  and  which  I  hold  in  my  hand;  tres- 
pass cases;  suits  to  quiet  title.  I  could  give  in- 
numerable cases  and  consume  the  rest  of  the  day. 
I  have  given  these  few  illustrations  merely  to 
bring  to  your  mind  the  force  of  the  practical  ob- 
jections. Of  what  value  will  courts  be?  What 
will  become  of  law  and  order  and  the  regulations 
of  organized  society?  What  of  the  dignity  and 
effectiveness  of  constituted  authority,  if  finality 
is  stricken  from  our  judicial  calendar,  if  it  be  given 
to  a  single  individual,  ignorant  or  educated,  hon- 
est or  dishonest,  to  override  and  nullify  the  final 
determination  of  the  highest  courts  in  the  state, 
reached  after  painstaking  investigation  and  hear- 
ing. Law  and  order  will  be  converted  into  a  hol- 
low mockery,  and  chaos  would  reign  in  this  State 
heretofore  governed  by  rational  law. 

I  have  taken  this  much  of  your  time  with  an 
analysis  of  the  act  itself.  Let  me  turn  now  to  an- 
other matter  that  should  not  be  overlooked.  It  is 
axiomatic  that  the  fewer  laws  there  are,  the  better 
it  is  for  organized  society  and  for  the  individual. 
This  is  a  political  truism  that  we  have  inherited 
from  Jefferson  himself.  Of  course,  every  wrong 
should  have  a  remedy,  every  right  should  be  pro- 
tected, and  legislation  should  be  enacted  where 
it  is  required  to  safeguard  property,  life  or  the 
enjoyment  of  life  and  property.  Where  none  of 
these  needs  exist,  legislation  is  vicious,  because  all 
needless  legislation  carries  its  inherent  vices  with  it. 


Page  42 


It  has  been  urged  that  organized  labor  has  been 
the  victim  of  many  abuses  and  that  it  has  been 
cruelly  wronged  by  the  courts  of  our  State.  I 
challenge  contradiction  of  the  statement  which  I 
now  most  earnestly  and  advisedly  make:  that  in 
no  state  in  this  union  have  the  legal  rights  of  labor 
been  more  fully  protected  than  in  California;  and 
that  in  no  state  in  the  Union  has  labor  less  cause 
for  complaint  in  this  respect  than  in  California. 

It  has  been  intimated  that  this  bill  is  confined 
in  its  operation  to  labor  union  disputes,  and  has 
not  the  wide  scope  its  language  imports.  Let  me 
assume  for  the  moment  what  these  gentlemen 
claim  is  true.  Then,  being  bound  by  the  ruling 
of  the  highest  court  of  this  State,  you  cannot  turn 
a  deaf  ear  to  a  decision  handed  down  by  our 
Supreme  Court  not  so  many  years  ago — the  case 
of  Pierce  v.  Stahlemens*  Uniorij  reported  in  volume 
156  of  California  Reports  at  page  70.  The  Union 
there  claimed  that  under  the  provisions  of  the 
statute  of  1903,  which  forbade  the  issuance  of  in- 
jimctions  in  labor  disputes,  the  court  had  no 
power  to  restrain  the  members  of  the  Stablemens' 
Union  from  applying  opprobrious  epithets  and 
threatening  to  beat  up  and  otherwise  injure  men 
who  would  not  obey  them.  In  dismissing  this 
point,  our  Supreme  Court  held  that  such  legisla- 
tion was  trespassing  upon  the  exclusive  province 
of  the  judiciary.  In  the  course  of  its  opinion,  the 
court  used  the  following  language: 


Page  43 


'*As  to  the  first  of  these  contentions,  this  court  had 
occasion  in  Goldberg,  etc.  Co.  v.  Stablemen's  Union, 
149  Cal.  429  (117  Am.  St.  Rep.  145,  86  Pac.  806),  to 
consider  the  statute  above  referred  to  and  relied  upon 
by  appellants,  and  declared  that  if  the  construction 
there  contended  for  (and  here  contended  for)  was  the 
proper  construction,  this  provision  of  the  act  was 
void.  Not  only  would  it  be  void  as  violative  of  one's 
constitutional  right  to  acquire,  possess,  enjoy,  and 
protect  property  but  as  well  would  it  be  obnoxious  to 
the  constitution  in  creating  arbitrarily  and  without 
reason  a  class  above  and  beyond  a  law  which  is 
applicable  to  all  other  individuals  and  classes.  It 
would  legalize  a  combination  in  restraint  of  trade  or 
commerce,  entered  into  by  a  trades  union,  which 
would  be  illegal  if  entered  into  by  any  other  persons 
or  associations.  It  would  exempt  trade  unions  from 
the  operation  of  the  general  laws  of  the  land,  under 
circumstances  where  the  same  laws  would  operate 
against  all  other  individuals,  combinations,  or  asso- 
ciations. It  is  thus  not  only  special  legislation,  ob- 
noxious to  the  constitution  (Art.  IV,  Sec.  25,  subds. 
3,  33),  but  it  still  further  violates  the  constitution  in 
attempting  to  grant  privileges  and  immunities  to  cer- 
tain citizens  or  classes  of  citizens  which,  upon  the  same 
terms,  have  not  been  granted  to  all  citizens."  (Art.  1, 
Sec.  21.) 

This  decision  cannot  be  ignored.  If  the  claim 
made  at  this  eleventh  houi'  by  the  proponents  of 
this  bill  that  it  is  limited  to  labor  controversies 
be  correct,  then  the  bill  is  unconstitutional  for 
the  reasons  indicated  by  Justice  Henshaw.  If  it 
is  not  limited  in  its  effect  to  labor  unions,  the  bill 
is  open  to  all  the  objections  I  have  hitherto  urged 
in  my  argument. 


Page  44 


The  hill  a  product  of  ** those  newly  distilled 

liquors  of  syndicalism  and 

anarchy  * 

DURING  the  last  three  or  four  months  I  have 
carefully  weighed  and  re-weighed  this  bill  to 
jSnd  some  point  of  merit  that  might  justify  its 
introduction  and  its  final  passage,  without  meet- 
ing with  any  success  whatever.  The  more  I  read 
it  the  more  indignant  I  became  that  such  legisla- 
tion should  be  offered  in  this  day  and  generation. 
Whether  it  was  run  through  in  the  rush  of  the 
closing  days  of  a  busy  legislative  session  or  whether 
it  was  cooly  and  designedly  introduced  for  the 
purpose  of  wilfully  bringing  about  the  deplorable 
conditions  which  I  have  indicated  would  ensue, 
I  have  no  means  of  knowing.  But  having  carefully 
called  to  the  attention  of  the  legislative  Commit- 
tees the  very  plain  imperfections  of  the  bill  as  well 
ajS  the  strong  judicial  decisions  of  these  many 
courts,  with  my  reverence  for  the  existing  institu- 
tions of  my  country  and  having  seen  the  most 
unequivocal  court  decisions  utterly  disregarded,  I 
cannot  help  but  believe  that  in  p,assing  this  bill 
our  legislature  has  truculently  offered  an  insult  to 
our  judiciary,  has  needlessly  cast  an  aspersion 
upon  the  courts  of  this  State,  and  has  unjusti- 
fiably condemned  an  attitude  towards  labor  which 
our  courts  have  never  entertained.  If  any  criti- 
cism is  merited  upon  this  subject,  it  might  possibly 
be  that  our  courts  have  stepped  ahead  of  all  other 
courts  in  sanctioning  practices  which  everywhere 
else  but  in  California  are  deemed  oppressive,  cruel 
and  illegal. 


Page  45 


I  realize  that  I  am  somewhat  overstepping  my 
time.  My  justification  for  imposing  thus  upon 
your  patience  is  the  gravity  of  this  question  to  the 
entire  business  community  and  to  the  State  itself, 
which  will  be  confronted  by  anarchy  at  a  time 
when  all  its  strength  and  all  its  resources  should  be 
conserved  for  the  great  struggle  which  this  nation 
is  now  entering  upon.  As  well  do  I  feel  the  bill 
destructive  of  the  very  principles  of  government 
under  which  this  nation  has  thus  far  prospered. 
I  cannot  speak  too  strongly  upon  this  subject,  for 
what  endangers  the  fundamentals  of  our  govern- 
ment, must  arouse  in  us  a  desire  to  fly  to  its  pro- 
tection. 

I  cannot  say  that  I  have  as  yet  yielded  to  the 
intoxication  of  those  newly  distilled  liquors  of 
syndicalism  and  anarchy  which  now  and  then 
are  quaffed  and  spilt  about  our  country.  Some 
men,  mentally  frenzied  by  the  belief  that  life  has 
not  yielded  to  them  all  of  material  return  which 
they  feel  they  deserve,  have  sought  an  outlet  for 
their  resentment  in  attempting  to  shatter  the  en- 
tire structure  of  our  social  system.  Others,  per- 
haps with  less  pardonable  motives,  are  exploiting 
men  who  all  too  little  realize  how  far  at  times  they 
are  being  led.  To  one  and  all  I  say  the  time  has 
come  for  the  sober,  intelligent  and  patriotic  people 
of  this  State  to  call  a  halt.  We  appeal  to  you,  sir, 
the  chief  executive  of  our  State,  to  stay  the 
threatening  hand  ere  it  wreak  its  full  destruction. 


Page  46 


Conch 


one  fusion 


LET  me  again  repeat:  We  have  naught  but 
-^  sympathy  with  all  the  legitimate  aspirations  of 
labor.  We  have  none  but  kindly  sentiments  for  a 
union  striving  for  a  better  material  as  well  as 
spiritual  plane.  To  everything  that  may  be  con- 
ducive to  a  better  scale  of  living,  to  a  happier  and 
more  contented  people,  we  are  willing  to  devote 
ourselves  and  all  which  we  possess,  but  inflexibly 
do  we  interpose  the  barriers  of  our  solemn  objec- 
tion to  anything  that  spells  destruction  or  ruin. 
With  all  the  earnestness  I  can  find  in  me,  sir,  I  beg 
you  most  seriously  to  weigh  these  objections 
which  I  have  been  compelled  in  hurried  fashion 
to  offer  before  you,  to  weigh  them,  with  a  mind 
ever  open  to  the  remotest  as  well  as  the  immediate 
consequences  of  such  legislation  to  yourself,  to 
ourselves  and  the  people  of  the  State  as  a  whole. 
I  have  spoken  to  you  as  a  lawyer  representing 
some  of  the  largest  commercial  interests  in  this 
big  State  of  ours,  but  I  appeal  to  you  over  and 
above  all,  as  a  citizen  having  a  true  love  and  a  sin- 
cere feeling  of  patriotism  for  this  State  in  which 
I  was  born  and  in  which  I  hope  to  leave  my  ashes. 


Page  47 


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